They have been the fair haired child of environmental groups for years now, and the bane of agriculture ….the Environmental Protection Agency. In agriculture, we’re not accustomed to many victories where the EPA is involved, but this past spring, agriculture did see a few.
Gary Baise, attorney with Olsson, Frank, Weeda, Terman, Bode Matz PC in Washington, keeps an eye on major litigation involving agriculture around the country.
National Cotton Council had a case in front of the Supreme Court earlier this year. NCC did not win the right to have their case reviewed. Baise gives an outline of the case:
This case basically said if you’re spraying, and you’re spraying near a Waterway of the United States, and that spray doesn’t all stay on the plant, and we know it doesn’t, well, if any of that material, which you would call excess, surplusage, or waste, and that gets into a water, and nobody sort of knows what a water is, it is basically just a waterway that water runs in frequently, and it gets into the water of the state, you have to have a Clean Water Act permit.
Well, you say that doesn’t sound like a big deal…well, it’s a very big deal if you have to have a individual permit, like any city or town, the state has to have a that permit. That permit has to be worked up by the EPA, you as an applicator have to turn in all kinds of paper work, then that permit would go through public hearings, then maybe a year later you could spray, after you were supposed to have sprayed. That just won’t work in agriculture.”
With that being said, with some agriculture advocacy groups’ help, EPA appears to be coming to their collective senses:
“So, what has happened, after this loss, EPA has been working with Farm Bureau and various state farm bureaus, Crop Life, and the Ag Retailers have been trying to work out what’s been called a General Permit. Now, a General Permit just means that a farmer might have to notify the North Carolina Department of Agriculture, or DENR, that a farm was going to sprayed, the amount that was going to be sprayed.”
At it appears that EPA may have overstated their intentions:
“Well, the good news is, it sounds like from the bureaucrats at EPA that the only spraying they want to seek to control under the National Cotton Council case would be mosquito control, control of aquatic weeds and algae, wide area pest control programs using airplanes, like the Forest Service does to do that spraying, and to control aquatic nuisances animals like Zebra Mussels and Asian Carp. Now, that’s what EPA bureaucrats are trying to do.”
Baise says it appears the light bulb came on at EPA when the full scope of what they were asking for:
“They understand, as all the state agencies do, you can’t get enough people to register and control the spraying on every farm in this country. It would be almost an impossible task. You would have to have a bureaucracy in the tens of thousands. Most states, who would be responsible for this are cutting back their state’s staffs, particularly in the Department’s of Agriculture. So, the good news is it looks to me like the EPA staff is trying to bring some common sense into the National Cotton Council case.”
We’ll hear more from Gary Baise tomorrow on Today’s Topic.